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BANKS v. OFFICE OF THE SENATE SERGEANT-AT-ARMS

February 5, 2004.

ROY BANKS, Plaintiff,
v.
OFFICE OF THE SENATE SERGEANT-AT-ARMS AND DOORKEEPER OF THE UNITED STATES SENATE, Defendant



The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

MEMORANDUM OPINION

Introduction

This is a Title VII action against the Office of the Senate Sergeant-at-Arms.

  During the course of the deposition of a witness named Alvin Macon, plaintiffs counsel posed four questions to which objection was made. As the matter now stands, defendant's counsel has withdrawn the objection to two of the four questions and the dispute centers on the remaining two questions. This dispute has now generated 78 pages of pleadings or 39 pages per question. That must the break old record. Since there has been so much heat and so little light, I must first elucidate the principles pertaining to the attorney-client and work product privileges when the defendant is a government agency.

  The Attorney-Client Privilege

  The attorney-client privilege in this Circuit shields what the client tells an attorney in confidence for the purpose of securing legal advice or legal services. As I have stated:

  I have discussed the attorney-client privilege in several of my previous opinions. The fundamental premise of all of them is that Page 2 the communication must have been made to "a member of the bar of a court" who "in connection with th[e] communication is acting as a lawyer" and the communication must have been made for the purpose of securing either an opinion on law, legal services, or assistance in some legal proceeding. In re Sealed Case, 737 F.2d 94. 98-99 (D.C. Cir. 1984). The privilege only applies when the information is the product of an attorney-client relationship and is maintained as confidential between the attorney and client. Brinton v. Department of State. 636 F.2d 600. 603 (D.C. Cir. 1980). cert denied. 452 U.S. 905. 101 S.Ct. 3030. 69 L.Ed.2d 405 (1981).

 
The mere showing that the communication was from the client to the attorney does not suffice. United States v. Western Electric Co., 132 F.R.D. 1. 3 (D.D.C.1990). The standard applied is to determine whether the client reasonably intended the attorney to keep the communication confidential. In re Ampicillin Antitrust Litigation, 81 F.R.D. 377. 389 (D.D.C.1978) ("[I]n order for the privilege to apply the client's communications must be made with the intention of confidentiality . . ."); Overseas Private Investment Corporation v. Mandelbaum, Civ.A. No. 97-1138, Memorandum Opinion at 6, December 15, 1998, (The privilege insulates from disclosure those communications between a client and his attorney in which the client enjoyed a reasonable belief that what he shared with counsel would remain confidential.).
Thus, the relevant inquiry for the set of documents containing communications from the client to the attorney is whether the communications made by Nextel to its attorneys were for the purposes of seeking legal advice, whether Nextel had a reasonable belief that the communication was confidential, and whether the disclosure of this communication would tend to reveal this confidential information. The attorney-client privilege also protects communications from the attorney to the client but only insofar as the attorney's communication discloses a confidential communication from the client. Evans v. Atwood, 177 F.R.D. 1, 3 (D.D.C.1997), (citing Brinton v. Department of State, 636 F.2d 600, 603-604 (D.C. Cir. 1980)).
United States v. Motorola. 1999 WL 552553 (D.D.C. May 28. 1999).

  An attorney-client relationship may exist between an institution or organization and its counsel. A corporation may claim an attorney-client privilege for confidential communications Page 3 made by its employees to corporate counsel in order to permit counsel to render legal services or legal advise to the corporation. There is no doubt that government agencies have the same privilege. Evans v. Atwood, 177 F.R.D. 1. 3 (D.D.C. 1997), (citing Tax Analysts v. IRS, 117 F.3d 607. 617 (D.C. Cir. 1997)).

  The Work Product Privilege

  Attorneys can also claim, on behalf of their clients, a privilege against disclosure of their work product. That privilege takes two forms.

  Fed.R.Civ.P. 26(b)(4) protects from disclosure a document prepared by a party or her agent, including her attorney, for trial or in anticipation of litigation. While the document may lose a portion of its protection upon a showing of substantial need and the inability to secure a substantial equivalent, the "mental impressions, conclusions, opinions or legal theories of an attorney . . . concerning the litigation" are never to be disclosed. Fed.R.Civ.P. 26(b)(3). Hence, the attorney-client privilege may yield to several exceptions, but the work product privilege is, in this sense, inviolate.

  The federal courts also protect work product even if it has not been memorialized in a document. Questions of a witness that would disclose counsel's mental impressions, conclusions, opinions or legal theories may be interdicted to protect "intangible work product." Sadowski v. Gudmundsson, 206 F.R.D. 25 (D.D.C. 2002): Neese v. Pittman, 202 ...


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